More Backpedaling by State Forensic Scientists

Here we go again. Forensic scientists are walking back courthouse claims from another crime lab. The latest round of unfounded bluster by expert witnesses is part of a nationwide pattern that includes misconduct, deceit, neglect, mismanagement, conflicts of interest and, sometimes, outright junk science.

This time it was in Texas. An update in the way Texas crime labs estimate the reliability of some DNA evidence raised new doubts even among prosecutors about the way forensic evidence is used in criminal cases. The discovery that expert witnesses overstated confidence in DNA analysis called into question thousands of convictions dating back to 1999.

The Texas error involved cases in which minuscule amounts of DNA evidence were obtained from mixed DNA samples. Where forensic experts might have previously testified to a million-to-one chance the sample did not match a defendant, newer methods showed any one of 30 or 40 people might have matched the sample.

Texas prosecutors are reportedly scrambling to review cases that could have been affected. National Public Radio reported the incident caused a “great pause” among prosecutors who gasped when they learned the extent of the problem.

As important as those injustices might be, the newly discovered flaw also raises wider questions about science in the criminal justice system. The incident again calls into question the practice of police agencies operating the labs that examine evidence their agency gathers, sometime funding the labs with proceeds from criminal convictions.

Misplaced Trust in Expert Witnesses

An examination of the ways flawed science systematically corrupts criminal cases starts with an understanding that courts do not do science. Juries do not do science. Juries and judges rely on experts who are ostensibly scientific authorities. It becomes a game of trust.

Trust in scientific authorities can be misplaced for several reasons. In the latest Texas fiasco, newly developed scientific methods were accepted as reliable before they fully matured. More mature methods were not adopted by the Lone Star State’s crime laboratories as quickly as they could have been.

The Texas scandal was essentially a developmental disorder within the state crime lab system. On the other end of the spectrum, scientific experts sometimes lie.

Oklahoma City’s crime lab was rocked by scandal in 2001 when a 21-year veteran scientist was accused of providing false and misleading testimony. The allegations against the once-trusted State’s witness led to one death sentence being overturned and another man’s rape conviction being overturned after he served 15 years in prison. The discovery also raised doubts about the conviction of another man Oklahoma had already executed.

The Oklahoma City forensic examiner was among several crime lab employees who’s credibility has called into question in recent years. A Massachusetts state chemist was jailed in 2013 and some 350 imprisoned drug convicts walked free – after the state scientist pleaded guilty to taking shortcuts in thousands of cases. Another Massachusetts crime lab drug analyst pleaded guilty that same year to stealing drugs from the laboratory and tampering with evidence to cover up her theft.

The New York City medical examiner’s office reviewed 800 rape cases after an internal investigation revealed problems with a lab technician’s work. In St. Paul, Minn, the police crime lab was discovered to be operating without written procedures by a police sergeant who had no scientific background. Technicians there had unrestricted access to the vault where drug samples were stored.

A crime lab in Nassau County, N.Y. was shut down in 2011 when police failed to advise anyone for several months about problems with drug analysis testing. The lab had twice in four years been flagged by accreditors’ inspections but neither the police nor the accreditation agency had county officials anybody of the concerns.

An audit of North Carolina’s crime lab conducted in 2010 found 230 cases had been affected by poor crime laboratory work. The audit uncovered a policy of reporting only presumptive blood tests that produced positive results, and withholding test results that were negative or inconclusive. By then, three death row inmates had been executed in cases where the state withheld the crime lab’s test results. Four other death row inmates sentenced after evidence had been withheld were identified in the audit.

The Oklahoma City crime lab scandal involved some of the same issues raised in the latest mixed-DNA boondoggle. So-called experts overstated the reliability of supposedly scientific evidence.

In Texas it was allegedly because the labs had simply not updated their procedures. In Oklahoma City, it was the result of an examiner’s apparent willingness to attribute unfounded trust in a form of hair analysis now widely debunked. By 2001, the New York Times had concluded hair analysis – a conventional forensic method at that time – was “subjective junk science.”

The FBI in subsequent years maintained that “microscopic hair comparison analysis is a valid scientific technique still conducted by the FBI Laboratory” but launched a review of 3000 cases where its crime labs had submitted reports or testified about hair comparisons. The findings were stunning. Out of 28 FBI examiners, 26 had provided erroneous testimony or reports about hair analysis. The errors touched 90 percent of those 3,000 cases, the FBI reported in April, 2015.

Crime Scene Evidence Ignored

While some forensic evidence is systematically misrepresented, crime scene investigators systematically ignore other forensic evidence. Such ignored crime scene evidence might as likely rule out a suspect as it would help prosecutors gain a conviction.

The Oklahoma Journal Record reported in September, 2015 that police in Oklahoma rarely gather fingerprint evidence except in the most serious crimes such as murder, rape and arson. While police might be equipped to collect fingerprints at other crime scenes, they often treat evidence in a way that destroys the value of evidence. Careless handling of evidence at a crime scene, however, can make it impossible to gather fingerprints.

Rather than building cases on meticulous examination of crime scenes, investigators often rely on eyewitness testimony, informants or confessions. When police and prosecutors can build a case on witness statements, there is often no reason to gather fingerprint evidence that could undermine witnesses’ statements or confessions. Unfortunately for defendants convicted on testimony of eyewitnesses or informants, that testimony can be built on similarly unreliable foundations. Eyewitnesses notoriously misidentify suspects, and informants can be motivated by promises of lenient treatment. Even confessions elicited after lengthy interrogations have often proven to be false.

The best cases, from a prosecution perspective, rely on solid science, multiple reliable witnesses, compelling circumstances and a defendants admissions. Prosecutors seldom find such a perfect combination of evidence.

Calls for Reform in Forensic Procedures

Instead, prosecutors often confront suspects with threads of evidence spun from bad science, traumatized witnesses, dubious informants, contrived circumstances and stressful interrogations. When a suspect does not yield to what often amounts to a prosecution bluff, prosecutors shore up their shakey case and head to trial. Injustice often results.

After a series of high-profile crime lab controversies revealed problems in the way forensic evidence is presented – or withheld – at trials, the American Bar Association in 2012 adopted two resolutions calling for reform. One called on governments to adopt pretrial discovery rules that require crime labs to reveal analytic procedures and results along with the identity, qualifications and opinions of analysts. The other asked judges and lawyers to carefully examine how expert testimony is presented to jurors and how juries are instructed to consider expert testimony.

Other recommendations for reform have suggested that crime labs should be administered outside of the state agencies that investigate crimes, and that funding should not be derived from crime lab fees collected as the result of criminal convictions. Critics have also noted a lack of funding for some public defenders to retain independent forensic experts.

Oklahoma’s crime laboratory nets $150 in court ordered fees from each criminal defendant convicted in a case in which the crime lab provided evidence. It is the type of crime lab funding scheme critics say tilts the tables in favor of the prosecution.

How to Counter Forensic Evidence in a Criminal Trial

A person facing criminal charges based on forensic evidence has no reason to presume a crime lab run by police agencies will look for evidence of their innocence. An Oklahoma criminal defense attorneys job is often to expose what the State’s experts did not reveal.

An effective defense attorney must often seek out independent forensic experts to review state lab work. At a minimum, a criminal defense attorney must be able to critique state laboratory procedures. A defense team also needs to assess State forensic expert’s credentials.

A review of the State’s forensic evidence and their expert’s credentials starts with discovery of the procedures and personnel involved. Even if a court denies access to some of that information, a criminal defense team must request the information so a denied request can later be appealed. Calling the question at trial can make a difference even years or decades later if systematic irregularities in crime lab procedures are eventually uncovered.

If you are facing charges or have been convicted based on forensic evidence in Tulsa Okla, it is urgent that you retain a Tulsa criminal defense attorney who knows how to examine the work of Oklahoma crime laboratories. Even if you were previously convicted, new evidence of laboratory misconduct can provide leverage to challenge your conviction.